Judges rule Obama can't close Yucca Mountain nuclear dump

WASHINGTON — Democratic Rep. John Spratt and Republican Rep. Joe Wilson don't agree on much, yet the South Carolina congressmen are cheering a new ruling that denied the bid by the U.S. Energy Department to withdraw its application for a nuclear waste repository at Yucca Mountain in Nevada.

Three administrative judges within the Nuclear Regulatory Commission ruled last week that Congress had designated Yucca Mountain in 1987 to receive highly toxic waste from the Savannah River Site on the S.C.-Georgia border and other complexes that built atom bombs during the Cold War.

The panel found that President Barack Obama and Department of Energy Secretary Steven Chu, a nuclear physicist, lacked the power to close the Yucca repository unilaterally; doing so, it ruled, would require another act of Congress.

"Unless Congress directs otherwise, DOE may not single-handedly derail the legislated decision-making process by withdrawing the (Yucca repository) application. DOE's motion must therefore be denied," the judges wrote, adding that the DOE had weakened its arguments by "conceding that the application is not flawed nor the (Yucca) site unsafe."

"Given the stated purposes of the Nuclear Waste Policy Act and the detailed structure of that legislation, it would be illogical to allow DOE to withdraw the application without any examination of the merits," the judges found.

In an unusual move, however, the NRC moved quickly to hear an appeal of the judges' ruling and set a July 16 deadline for follow up briefs.

"The department remains confident that we have the legal authority to withdraw the application for the Yucca mountain repository," said DOE spokeswoman Jenni Lee. "We believe the administrative board's decision is wrong and anticipate that the Nuclear Regulatory Commission will reverse that decision."

If the NRC rules against the Energy Department, the agency can appeal to the D.C. Circuit Court of Appeals. That appellate court is already adjudicating parallel litigation involving Nevada, South Carolina, Washington and other states with large amounts of high-level nuclear waste from past atomic weapons production.

"Currently, South Carolina is storing 37 million gallons of liquid waste at SRS, as well as tons of used fuel rods at nuclear plants across the state that are intended to be shipped to Yucca Mountain," Spratt said.

"Should Yucca Mountain not be opened, South Carolina would be stuck with this waste indefinitely," he said.

Spratt, a Democrat, said he will use his post as House Budget Committee chairman to try to restore at least some of the funds cut by Obama to start building the Yucca repository.

Rep. Joe Wilson, a Lexington, S.C., Republican, said shuttering Yucca would waste years of research and money spent on environmental, engineering and safety plans for the desert site 90 miles northwest of Las Vegas.

“Thousands of studies and billions of dollars are invested in this repository, including over $1 billion from South Carolina,” Wilson said. “If we are to be serious about an energy future in America, we must get serous about nuclear power and move forward with Yucca Mountain.”

Yucca is designed to hold waste from nuclear weapons production and maintenance at SRS and similar complexes in Washington state, Idaho, Tennessee and other states.

The repository would also take less toxic – but still plenty deadly – waste from the nation’s 104 commercial nuclear reactors, including seven in South Carolina and five in North Carolina.

The federal government has spent more than $10 billion to develop the Yucca repository. The funding has come from a surcharge paid by nuclear power customers, as required by the 1982 Nuclear Waste Policy Act.

The surcharge, which has raised $32 billion nationwide, has hit South Carolinians especially hard because nuclear power provides 51 percent of their electricity, more than in all but two of the other 30 states with commercial reactors. About 31 percent of the electricity in North Carolina is nuclear-based.

After Obama moved to mothball Yucca, Sen. Lindsey Graham, R-S.C., introduced a bill in April 2009 to give nuclear utility consumers rebates from the Yucca surcharges.

“The decision by the Obama administration to close Yucca Mountain was ill-advised and leaves our nation without a disposal plan spent nuclear fuel or Cold War waste,” Graham, a Seneca, S.C., Republican said.

Senate Democratic leaders have stymied Graham’s bill, which hasn’t moved from the Senate Energy and Commerce Committee.

Just as they are influencing other policy battles in Washington, the November elections loom over the long-running Yucca Mountain saga.

Spratt, 67, and Wilson, 52, are both in competitive re-election campaigns in a year punctuated by many voters’ anger against incumbent officeholders.

Spratt, who revealed in March that he’s in the early stages of Parkinson’s disease, faces S.C. Sen. Mick Mulvaney, an Indian Land, S.C., Republican, in the November voting.

Wilson and Rob Miller, a Beaufort, S.C., Democrat, are squared off in a repeat of their 2008 contest, which Wilson won by a 54-46 percent margin.

The 2nd Congressional District race is among the nation’s most well-funded and closely watched, thanks to Wilson’s “You lie!” yell at Obama last September as he addressed a joint session of Congress in a prime-time televised speech on health care.South Carolina governors and other leaders from both major parties have fought for a quarter century to gain federal assurances that SRS – located on the

Georgia border in Aiken County – won’t become a permanent dump for its toxic waste.

Spratt’s opposition to Obama over the Yucca nuclear repository is his first break with the president on a major issue.

Wilson and other Republican lawmakers accused Obama of playing politics in trying to shutter Yucca.

“The president is risking the country’s energy independence in an effort to help Senator Reid win a tough election,” said Sen. Jim Sensenbrenner of Wisconsin, senior Republican on a House Select Committee on Energy and Global Warming.

Senate Majority Leader Harry Reid, a Nevada Democrat and an early supporter of Obama’s 2008 presidential campaign, is struggling to keep his seat.

Recent polls show Reid trailing Sharron Angle, a former Nevada Republican assemblywoman and a Tea Party favorite, in their campaign for the November general election.

Storing the nation’s most poisonous nuclear waste under a mountain near Las Vegas, Reid and most other Nevadan leaders believe, would threaten the city’s $28 billion gaming and broader tourism industry.

“It’s closed, it’s gone,” Reid said of the Yucca repository after the Obama administration moved to halt the project.

With the recent NRC ruling, the Yucca site has new life, though perhaps just barely.

Chu in January set up the Blue Ribbon Commission on America’s Energy Future. He directed the panel – led by former Rep. Lee Hamilton and former national security adviser Brent Scowcroft – to seek alternatives to Yucca Mountain for radioactive waste disposal.

David Jameson, head of the Greater Aiken (S.C.) Chamber of Commerce, criticized Chu for failing to include on the panel any leaders from the five South Carolina and Georgia counties that surround SRS – or from neighbors of the nation’s other major nuclear arms complexes.

“We have asked repeatedly for representation, but have been ignored,” Jameson said. “The federal government has broken faith with our communities and others who were told they would be (only) temporary hosts to high level defense waste.”

The Yucca file

Location: Nevada desert, 90 miles northwest of Las Vegas.

Designated by Congress as nation’s nuclear waste dump: 1987

Original deadline for accepting first waste: 1998 Current deadline: 2017